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Student visa program 'corrupted'
Steve Butcher
November 5, 2011
THE Federal government migration program designed to attract thousands of young, highly skilled students to fill Australian jobs has been "corrupted" by a Melbourne man who created a sophisticated scam that rorted the system.

Carmine Amarante made tens of thousands of dollars, but stood to make up to almost $2 million, by manufacturing hundreds of fraudulent documents for international students to ultimately become permanent residents.

The County Court heard that over three years from 2006 Amarante, 36, created false work reference letters and other documents used by the students in conjunction with skills assessments and visa applications.

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Prosecutor Scott Bruckard said Amarante "assisted international students to obtain permanent residency in Australia by creating false work reference letters" he submitted to a branch of the Department of Education, Employment and Workplace Relations.

Amarante admitted he was paid between $500 and $1000 for the 777 false documents he created and had paid employers — some who were friends, some from referrals and others he approached on the street — for each student they agreed to falsely represent had performed the required hours of work experience.

He told investigators that after he stopped working as a teacher he used a city pokies tabaret as his "office" to run the scheme.

Judge Gabriele Cannon yesterday jailed Amarante for conduct she said had "seriously harmed" the general skilled migration (GSM) program which was managed by the Department of Immigration and Citizenship (DIAC).

Judge Cannon said he had jeopardised the integrity of the migration process, corrupted the program and made a mockery of it through sophisticated, carefully planned and well organised offending.

The married father of three, from Glenroy, had devastated his life and that of his family's while his gambling addiction explained but did not mitigate his crimes, she said.

Under the GSM, overseas students are assessed for visas if under 45, have relevant skills, including recent skilled work experience or full-time study in Australia, and English language ability.

At least 22 of 96 employment offer letters purporting to offer work that were found at his home had been lodged with the Victorian government for sponsorship for the purpose of obtaning skilled migration visas issued by DIAC.

Amarante, who pleaded guilty to four charges, including three of forgery, was jailed for 33 months with a minimum of 20 months.

On his release, a 13-month sentence will be held in abeyance pending his good behaviour for three years.

Some of the affected students have landed in WA. PIC 4020 has been slapped on them and they have been asked to comment on " natural justice " grounds. For the first time one of them has sought my assistance. I have no past experience on 4020 and looked at PAM for grounds of Waiver to set aside the effect of 4020. Pam provides a very narrow pathway to seek waiver under compelling grounds. What compelling gfrounds can one use. Led by a wayward greedy guy for quick fix where the student fell a victim on a momentry error of judgement. He now has a good job as an underground driller in a gold mining site in WA.

I welcome any sugestions/help from agents and non-agents.My creativity is at a low ebb in this summer heat in WA.

It is certain that all Carmin Armarante students will get the PIC 4020. All letters will have the same paragraph referring to Carmine

Question : Was the bogus document material to the grant of the visa ?

Admitting in writing to the wrong doing will in all probability have a two fold impact

-Refusal under PIC 4020. 3 year ban

-Invoke the Crimes Act

135.1 (7) General dishonesty

A person is guilty of an offence if:

(a) the person does anything with the intention of dishonestly influencing a public official in the exercise of the official’s duties as a public official; and
(b) the public official is a Commonwealth public official; and
(c) the duties are duties as a Commonwealth public official.

I have attended the first, 2 day Criminal proceedings by CDPP on behalf of DEEWR in Melbourne. The student was convicted based on documents provided by the RMA. The RMA is under investigation. I think the students have a bleak chance on bogus documents.

The only remote possibility is to challenge the validity of 900 hours.

A RMA representing the student must inform him/her of the risks involved and the likely outcomes.

As the case involves both Migration laws and criminal Laws, I am just wondering whether a RMA without a Legal practicing certificate can represent a client. It is true the present letter request a response to Schedule 4 (4020). However the response may invoke the Crimes Act.

There is no evidence before the Minister that the applicant has given, caused to be given, to the Minister , an officer, the Migration Reveiw Tribunal, a relevant assessing authority or a Medical Officer of the Commenewealth, a bogus document or information that is false or misleading in a material particular in relation to: (a) the application for the visa : or (b) a visa that the applicant held in the period of 12 months before application was made.

Firstly, I don t think one can redirect or confine this issue to be of a criminal issue (all cheatings are crminal by nature). The DIAC letter seeking invitation to comment is CLEARLY based on a breach of the Migration regulations and therefore ANY RMA can lawfully can represent the client. If it had been the intention of the Commenwealth Government to charge the students under Penal Code than the DIAC, as the receipient of the bogus document, would have worked with the AG to charge the students under the Criminal Code. That is not the case in this instance.

I tnink the main reason for the DIAC to take action under the Migration laws is to cancell the visa by withdrawing all benefits enjoyed by the students by this unlawful act. If the DIAC does nothing and waits for the students to be charged under criminal code and get convicted of a criminal offence, the DIAC would still have to go throught the complex process of cancelling the visa. It is to avoid this dual process a single seamless process is adopted. Furthermore it is cheaper to cancell the visa and give the 28 days notice for the students to depart Australia. Some are opting to appeal to MRT and I do not think they have buckley chance under Para 4 of waiver under compelling circumstances that affect the interest of Australia.

Some of this students have come to Perth in desperation and hoping hoping around from agents to agents. Most of them are from India and they are unwilling to withdraw their application and return without the 3 year bar.

Back to your point, this issue can be lawfully handled Migration Agents, but even the best lawyer-agent or agent will find this loosing process. best advise is to persuade the students to withdraw application, and return or apply for another visa where skills assessment is not required.

Challeging the necesscity for the 900 hours may not hold water, as it is the right of the skills assessing authority to impose any reasonable condition for skills to be fully recognised in Australia.

I agree that a RMA can respond to the DIAC letter. However there is a possibility that the CDPP are likely to charge these students through DEEWR after the recent success at the Melbourne Magistrate Court. We did not represent the student.

The instruction from the client must be in writing knowing that there is a remote possibility of success.

In a recent Federal Magistrate Court case DIAC lawyer has requested the judge to pass on the applicant (student) charges to the Solicitor for lodging a baseless case.

We lodged an application for judicial review, and a week later CDPP issued charges on behalf of DEEWR. Please note the bogus 900 experience was given to a DEEWR official (Public official) as part of the assessment process.

Skills assessment is outside the scope of Migration Law (Act & Regs).

I understand that the maximum sentence for sec 135.1(7) is 2 years imprisonment.

While Brar was on technicality on the notifications, validity of 900 hours and introduction of retrospective delegation on 1st Oct 2011 backdating validity from 1st July 2007, will be heard in May and June by two different Federal Magistrates.

Federal Magistrate Driver has just handed down a decision in the matter of SINGH in the FMC in Sydney.
This is a very important case which finds that TRA was not validly appointed (ie, not validly authorised to do skills assessments- TRA is responsible for number of trade occupations skills assessments including hairdressers, cooks, motor mechanics, etc) as at 28 September 2009 and that the subsequent application for a visa subclass 485 made on 7 July 2009 and subsequently on an appeal to the MRT were not infected by PIC 4020 considerations because the TRA was not validly appointed at the relevant time. Accordingly, the alleged false statements to the TRA concerning the applicant's work experience were not capable of grounding conduct said to enliven PIC 4020 considerations.